Lack of health and safety measures leads to compensation following death

In their application the heirs of Joseph Barbara held that the defendant company was the deceased’s employer, who failed to ensure that all safety measures existed in terms of Article 8(1)(b) of Chapter 37 of the Laws of Malta.

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Malcolm Mifsud
26 November 2015, 7:50am
The First Hall of the Civil Courts in its judgement of 18 November, 2015 held that a company was responsible for the lack of safety measures on a building site. This was decided in Ryan Barbara, Brandeen Ciappara, Northon Barbara, Roberta Callus in the name of minor Lani Barbara Callus, all offspring of Joseph Barbara -v- Pavin Limited.

In their application the heirs of Joseph Barbara held that the defendant company was the deceased’s employer, who failed to ensure that all safety measures existed in terms of Article 8(1)(b) of Chapter 37 of the Laws of Malta.

The company in particular failed to ensure Joseph Barbara’s safety at his workplace in terms of Article 49(1) and (3)(a) of Legal Notice 52, 1986. Due to this Joseph Barbara lost his life at his place of work in Tarxien on 30 October, 2007 and therefore, asked the court to condemn the company to pay damages.

In its statement of defence Pavin Limited held that the company was not to blame for the accident and that there were no damages to be liquidated.

Mr Justice Lawrence Mintoff analysed the evidence, which showed that on 30 October, 2007, Joseph Barbara was working on the roof of a block that was four storeys high. In the road there was a crane, operated by a director of the company, taking up building material to the roof. Joseph Barbara climbed on some bricks there, guiding the crane and manoeuvring the bucket, and then would push a lever for the material to be deposited on the roof. He climbed higher on the bricks to reach the bucket, and then fell four storeys. 

The Court then quoted the General Provisions for Health and Safety at Work Places Regulations: “4. (1) It shall be the duty of an employer to ensure the health and safety of workers at all times in every aspect related to the work.”

Although the company held that it adhered to the regulations, from the photos produced Mr Justice Mintoff pointed out that the stairs had no protection rails, the lift shafts were open and there were unprotected openings.

From this the company did not manage to guarantee a safe working environment. In fact the directors were already found guilty of the criminal charges connected to this accident.

The employer is bound to follow these regulations in case the workers are not attentive. In this case the director of the company himself saw that Joseph Barbara took a dangerous position when the building material was being hoisted and should have stopped him immediately. Furthermore, part of the problem was the position of the crane, which deposited the martial too close to the edge and did not offer protection to the workers on the roof.

On the other hand Joseph Barbara contributed to the accident, as he exposed himself to danger when he climbed the bricks as the material was being lifted. He was aware that the position he took was dangerous and that the bricks were not stable.

Then Mr Justice Mintoff calculated the damages. At the time of his death Joseph Barbara was 52, but no evidence was given about his income. The Court then calculated on the basis of the minimum wage. He has eight years to reach the pensionable age. He would have earned €64,833.52 from 2008 to 2015.  The Court then reduced 25% for personal consumption and then a further 33%, for the grade of dependency and a further reduction of 25% for his contribution to the accident. This then resulted in €24,434 in liquidated damages. 

The Court ordered the company to pay this sum to the heirs of Joseph Barbara.

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Malcolm Mifsud is a partner at Mifsud & Associates.